The recent decision of the Ontario Court of Appeal in R v Nguyen, 2015 ONCA 278 [Nguyen] on the spousal incompetency rule has now been rendered largely moot as a result of changes to the Canada Evidence Act [CEA] brought in by the previous Harper government. At issue in Nguyen was whether the spousal incompetency rule could be extended to common law spouses.

Following a jury trial Bao Quoc Nguyen (“Bao”) and Kien Binh Tu (“Binh”) were convicted of first-degree murder, and Bao Tri Nguyen (“Tri”) was found guilty as an accessory after the fact to murder. The victim, Quang Thi Nguyen (“Quang”) had been shot and killed in a karaoke bar in Mississauga, Ontario. The identity of Quang’s shooter was never determined and the evidence against the appellants was entirely circumstantial. However, the Crown called the common law spouses of Bao and Tri to testify in the trial in regards to certain out-of-court statements made by Bao’s common law spouse after the shooting.

Bao had lived with his partner Quynh Ngo (“Quynh”) for over ten years. They had a 10-year-old child together and were also co-parenting Quynh’s child from a previous relationship. The other appellant, Tri, had lived with his partner for approximately three and a half years.

Pre-Trial Ruling on Spousal Incompetence

Prior to trial, Bao sought an order declaring his common–law spouse not competent or compellable to testify for the Crown. Bao argued that the spousal incompetency rule infringed his equality rights under section 15 of the Charter, as it discriminates between married and common law spouses. He further argued that the rule should thus be extended to common law spouses.

The trial judge found that the spousal incompetency rule does not infringe section 15 of the Charter. In reaching this decision, the trial judge conducted an analysis using the three-part test from Law v Canada (Minister of Employment and Immigration), [1999] 1 SCR 497. In applying the test, the judge determined that the first two stages had been met, but not the third. In regards to the spousal incompetency rule the judge determined:

The spousal incompetency rule sets out a clear and formal distinction between married and common-law spouses that deprives common law spouses of the benefits of spousal privilege and testimonial protection.

The distinction is based on an analogous ground of marital status.

The spousal incompetency rule does not perpetuate a disadvantage to common- law spouses through prejudice or stereotyping. Nor does it impact on dignity.

The trial judge reasoned that to be common law is to make a choice not to be married. The trial judge cited Nova Scotia (Attorney General) v Walsh, [2002] 4 SCR 325 for the view that “the decision to marry is a choice that brings with it benefits and obligations, and that choice should be respected” (para 61).

The trial judge also took note of the different provisions of the CEA concerning spousal testimony. Section 4(3) of the CEA, dedicated to spousal privilege, states that communication made within marriage is protected by confidentiality, or in other words, is “privileged.” However, the trial judge found that the issue of spousal privilege was not present in the instant case because the couples were not married.

Decision at the Court of Appeal

Writing for the Court, Appeal Justice Gillese determined—contra the trial judge—that limiting the spousal competency rule to married spouses does discriminate against common law spouses and constitutes an infringement of equality rights under section 15 of the Charter. However, she determined that the infringement could nevertheless be upheld under section 1 as a reasonable limit of the Charter right.

Does the law create a distinction based on an enumerated or analogous ground? and

Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?

The respondent Crown conceded that the first stage of the test had been met, as the spousal incompetency rule creates a distinction based on the analogous ground of marital status. Thus, it was the second stage of the test that carried the day.

Strangely, after finding an infringement of section 15, the Court proceeded to affirm that requiring common law spouses to testify actually “has the effect of affirming the dignity and self-worth of witness spouses, except where those individuals have chosen to marry and thereby accept the state-imposed responsibilities and protections flowing from that status” (Nguyen, para 8).

Parallels on Section 15

This version of “the state legal system knows what is best for your dignity argument” brings to mind the judgment of Chief Justice McLachlin in Gosselin v Quebec (Attorney General), [2002] 4 SCR 429 [Gosselin]. There, the unequal provision of welfare benefits for those under 30 years of age was held to actually uphold the dignity of the rights seeker. In Gosselin, McLachlin CJC explained that providing less financial support and requiring those under 30 to participate in “workfare” type programs was not in fact an affront to human dignity. Rather—in contrast to what the claimants in Gosselin argued—these types of programs actually exist for the benefit of the claimants. She explained, “As a matter of common sense, if a law is designed to promote the claimant’s long-term autonomy and self-sufficiency, a reasonable person in the claimant’s position would be less likely to view it as an assault on her inherent human dignity” (Gosselin, para 27). Thus, it was held that providing unequal welfare benefits to those under the age of 30 was not actually discriminatory, because it was for their own good, and the welfare recipients just did not understand. Thus this sort of paternalistic interpretation of dignity under section 15 seems to have been at work in Nguyen as well.

In addition to Gosselin, the instant case also bears semblance to that of a case from the family law context, commonly referred to as “Eric v Lola” (Québec (Attorney General) v A, [2013] 1 SCR 61). In Eric v Lola, a majority of the Supreme Court of Canada (“SCC”) determined that the exclusion of common law spouses from the articles of the Québec Civil Code that provide for spousal support, property sharing, and rights to the family residence upon separation of married couples could be upheld under section 1 of the Charter. It was determined that the exclusion of common law spouses from the married property law regime reflected the choice that common law spouses had made to avoid marriage and its obligations and benefits.

The takeaway appears to be unsurprising, that courts will attempt to determine the impugned law’s purpose to identify its impact on dignity, and less to the claimant’s actual contention that dignity and rights have been infringed.

Nevertheless, the SCC will not have the opportunity to decide on the discriminatory nature of the spousal incompetency rule in Nguyen, given that it has been legislated away under new changes to the CEA. Not to mention that Nguyen has withdrawn his appeal to the highest court.

Changes to the Canada Evidence Act

Under Bill c-32, An Act to enact the Canadian Victims Bill of Rights and to amend Certain Acts, the provisions concerning spousal testimony and the protections afforded to spouses under the common law have been done away with. The new provision, under section 4 of the CEA clearly states:

(2) No person is incompetent, or uncompellable, to testify for the prosecution by reason only that they are married to the accused.

Thus, all spouses—whether married or not—are competent and compellable to testify for the prosecution now. Yet what has not changed is the spousal communication privilege rule. Meaning that, communication made within the marriage is still privileged:

(3) No husband is compellable to disclose any communication made to him by his wife during their marriage, and no wife is compellable to disclose any communication made to her by her husband during their marriage.

This may have some interesting implications for spouses who are first common law and later get married, as there may be questions as to timelines in testimony and what sort of information will be protected by the rule.

Conclusion

The remaining spousal privilege rule is vulnerable to a Charter challenge, much like the spousal competency rule discussed above, on the analogous grounds of family status.

Although the spousal incompetency rule does indeed arise out of an era of antiquated gender relations in which women were subsumed under a property regime upon marriage, it nevertheless should be considered in terms of its actual impacts. As McLachlin J (as she then was) observed in R v McGinty, (1986), 27 CCC (3d) 36, in terms of the substantive effects on gender equality:

a rule which leaves to the husband or wife the choice of whether he or she will testify against his aggressor-spouse is more likely to be productive of family discord than to prevent it. It leaves the victim-spouse open to further threats and violence aimed at preventing him or her from testifying, and leaves him or her open to recriminations if he or she chooses to testify. It seems to me better to leave the spouse no choice and to extend to married persons the general policy of the law that victims are compellable witnesses against their aggressor (40).

Furthermore, the SCC specifically left it open to Parliament to change the provision in R v Hawkins, [1996] 3 SCR 1043 and Parliament has done so. What remains to be seen is the impact of the new provision and its interaction with the spousal privilege rule on gender equality and the analogous ground of marital status.